Complainant

Respondent

Parties

Vinicius Fedyna

Westwood Club CLG

Representatives

Self-represented

Peter Duff & Co

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062079-001

07/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00062079-002

07/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062083-001

07/03/2024

In October 2018, the Complainant started working as a cleaner at the Respondent company. He moved to the personal training team in 2021. The Complainant alleges that since the management in his department changed, he has been bullied, harassed, and treated indifferently by his co-workers, and he was forced to resign due to the treatment by the Gym Manager.

The Respondent refutes the complaints.

The Complainant submits as follows:

After a disagreement in a meeting in May 2023, where he expressed his point of view in an attempt to help improve the quality of classes, the Gym Manager started to persecute him.

The Complainant submits that the Gym Manager created exclusive rules for him, as indicated in an email of 29 May 2023, where, without prior training and explanation, he received a Word document with guidelines to be followed as it was alleged that he was violating rules created by the Gym Manager. The Complainant submits that the Gym Manager’s attitude and the excessive monitoring of work, violates the company's codes of conduct which describes examples of bullying such as exclusion, intimidation, being treated less favourably than colleagues, excessive monitoring of work, humiliation, and manipulating a person's job content and targets.

Due to his work situation, in June 2023 the Complainant decided to take a holiday and go to Brazil to take care of his mental health and address his knee issues, which were starting to cause pain due to the high number of classes he was teaching. When the Complainant visited his doctor, he was advised not to teach three consecutive classes as it would worsen the injury.

This advice proved true in December 2023 when he injured his knee and couldn't walk or teach anymore. During this time, he received constant messages on his private phone outside of his working hours, asking about appointments and implying that he was conducting illegal personal sessions. These messages, often about classes, were sent after midnight or on Sundays, interfering with his rest time with his family. Despite his requests not to be sent messages during these times, he was clearly ignored because it suited the Gym Manager’s routine and convenience.

In addition to the injury in December 2023 and the constant persecution practiced by the Gym Manager, the Complainant filed an informal complaint in good faith to improve the work environment. However, him at the end of 2023 the Respondent turned it into a formal complaint against him without his consent. This complaint was not sent to the company's HR and was dismissed by a manager on the same level as the Gym Manager, causing him more stress and victimisation. In January 2024, the gym, doubting his injury, referred him to the company doctor, where it was confirmed that he was indeed injured and unable to work, but due to his family's needs, he continued working despite the pain.

In February 2024, still due to doubts about his injury, he was referred to his GP, who confirmed his injury and recommended complete absence from teaching for 10 weeks. Despite the injury, the Complainant made himself available to continue working (avoiding physical classes such as Bodypump, Sprint, and Core due to the GP's recommendation), and because he was the only person in the household working and paying the bills, he continued to make himself available for work despite the pain.

After that, the treatment of the Complainant by the Gym Manager became even more unfair. The Gym Manager often tried to make his work more difficult by changing his work schedule, making false accusations, and humiliating him with his abuse of power and unprofessional behaviour. The Complainant said that he could not work in the afternoons and evenings due to his family responsibilities. He had no extended family in Ireland on whom he could rely for support.

The Complainant submits that in January 2023 he gave the Gym Manager a letter from his physiotherapist. The Complainant asked the Gym Manager if he could do low impact classes in January and February 2024.

The Respondent said that Bodypump, which is a high-impact class, was part of his contract. The Complainant was also put on closing shifts which did not suit him due to his family responsibilities. He had always worked mornings, then his schedule started to change, and he did not have a routine to support his family.

The Complainant contends that he was discriminated against on the grounds of disability and race. He had a meniscus injury to his knee which prevented him from moving fast. He further contends that he was victimised and harassed by the way the Gym Manager spoke to him; the Manager looked at him differently to other staff; he was not praised for doing things well but was criticised for doing things badly, other staff members were praised for doing regular things; the constant changing of his schedule; and the excess monitoring of his personal training appointments. The Complainant asserts that he was discriminated against in his conditions of employment due to the timing of his shifts.

The Complainant asserted that two named Irish colleagues and one named Argentinian colleague were treated better than he was due to their nationality.

In response to the Respondent’s allegation that the Complainant won a body building competition while he was injured, the Complainant contends that he cannot move his knee but that this is not necessary for body building.

The Complainant rejects the Respondent’s allegation that he did any personal training outside of work hours when he was injured.

The Respondent submits that the Complainant was not discriminated against on any ground.

The Respondent submits that it is a diverse employer. The Gym Manager is Moldovan, and a minority of staff are Irish. The Respondent contends that the Gym Manager’s behaviour towards the Complainant had nothing to do with the Complainant’s nationality and that the Gym Manager did not treat him any differently to other staff members. All staff members received texts outside of their work hours.

The Respondent contends that the Complainant does not suffer from a disability; he suffers from an injury which is a temporary occurrence. The Respondent alleges that the Complainant won a body building competition in May 2024 while he was injured.

The Respondent contends that the Gym Manager contacted other staff members outside of their work hours.

The Respondent asserts that the Complainant did ‘nixers’ outside of work hours while he was claiming to be disabled.

The Respondent asserts that at a meeting with the Childcare Manager on 16 January 2024, the Complainant informed her that he intended to leave the Respondent organisation in May 2024 because of his injury; the level of stress he was experiencing; and burnout.

The Respondent asserts that the Complainant did not like the Gym Manager and that he did not agree with the way the Gym Manager was doing his job.

The Respondent submits that it followed its grievance procedure in its dealings with the Complainant.

The Respondent contends that a cert supplied by the Complainant dated 14 March 2024, states that he was “suffering from acute illness”.

Direct evidence of Sorin Bornaru, the Gym Manager

The Gym Manager said he would communicate with the Complainant via text or email. If he had any issue with the Complainant’s performance, he would talk to him first before escalating the matter further. The Gym Manager denied that he penalised or victimised the Complainant.

The Gym Manager said that the Complainant used to do late nights, but he could no longer do them as his wife was looking for a job. The Gym Manager said that he tried to give the Complainant morning shifts.

The Gym Manager said that the tried to accommodate the Complainant’s injuries by taking him off high-intensity classes. Because the Complainant could not do lower body work, he let him pick his own classes which is normally not allowed.

The Gym Manager confirmed that he would text all of the gym team outside their work hours. When the Complainant complained about the out-of-hours texts, the Gym Manager told him that there was no need to respond until he was in work. The Gym Manager asked the Complainant for a second line of communication to avoid any issues in this regard.

The Gym Manager confirmed that a lot of the gym team members were of the same nationality as the Complainant.

In response to a query from the Adjudication Officer, the Gym Manager confirmed that he had sent an email to the Complainant on 24 February 2024 providing him with reasonable accommodation as follows:

“I have received the doctor’s note and with duty of care is paramount, so I have removed all high intensity classes from your schedule to accommodate you.

With this in mind, I must readjust your schedule to meet the requirements of the club.

I will chat to you about this in the coming week to take effect from week March 4th. I have changed your schedule Saturday March 2nd to 12:30-8:30pm.”

The Gym Manager asserted that the requirement on the Complainant to work in the afternoon and evenings was in line with the terms of his contract.

Direct evidence of Cathal Khan, the General Manager

The General Manager said that the Complainant approached him in December 2023 wanting to discuss issues about the gym team. They had a general catch-up. The Gym Manager asked the Complainant if he wanted to deal with his issue formally or informally. The Gym Manager was aware that English was not the Complainant’s first language. The Complainant chose to take the formal approach.

The General Manager assigned the Assistant General Manager to begin the initial grievance procedure. Unfortunately, the issues could not be resolved.

The General Manager confirmed that the Respondent has 30 staff member who are of many different nationalities. Irish employees are in the minority.

Direct evidence of Katie Hyland, the Assistant General Manager

By email dated 11 December 2023, the Assistant General Manager invited the Complainant to a meeting to discuss the concerns he had raised. The Complainant replied and listed seven issues which had been adversely affecting his well-being and work environment.

The Assistant General Manager held a meeting with the Complainant and a colleague as note-taker. She went through all the points the Complainant had raised. The Complainant confirmed that he wanted to continue on the formal route. The Complainant indicated that he did not want the Gym Manager to know what was said. The Assistant General Manager said that the Gym Manager had to know.

The Assistant General Manager said that she saw the Complainant training and lifting over 100kgs when he was alleged to be suffering from a disability. She said that he looked fine.

Cross-examination of the Assistant General Manager by the Complainant

The Complainant suggested that he indicated to the Assistant General Manager that he wanted to go informal.

Direct evidence of Niamh Maher, the Childcare Manager

The Childcare Manager said that she conducted the investigation. She asked the Complainant why he had no medical proof of his disability.

The Childcare Manager did not think that there was any problem with the Gym Manager using WhatsApp to communicate with the gym team. She said that it was perfectly fine for the Complainant not to respond to the WhatsApp messages outside his office hours. In her view, the Gym Manager was not treating the Complainant differently to other staff; she could not see how the level of supervision of the Complainant was higher than that of his colleagues.

The Childcare Manager also interviewed the Gym Manager. She thought that a lot of the issues arose as a result of a personality clash.

Direct evidence of Claire Cahalin, Childcare Deputy Manager

The Childcare Deputy Manager confirmed that she took notes of the investigation meeting and that the notes were an accurate record of the meeting. She confirmed that she emailed the typed notes to both the Complainant and the Gym Manager. Neither of them suggested any changes to the notes and they both signed the notes.

Conclusion

The Respondent submits that the Complainant was not subjected to discrimination based on either his race or a disability.

The Respondent further submits that that the Complainant does not have a disability within the meaning of the Employment Equality Act 1998, as amended, but despite this reasonable accommodation was provided by the Respondent to the Complainant.

The Complainant referred his claim to the Director General of the WRC on 7 March 2024 alleging that he was discriminated against by the Respondent by reason his disability and his race. He further alleged that he was victimised; he was not provided with reasonable accommodation for a disability by the Respondent; he was discriminated against in his conditions of employment; he was harassed; and he was discriminated against in other ways.

The Respondent rejects the complaints.

Burden of proof

The Employment Equality Act 1998, as amended (the “Act”), places the burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory grounds of disability and race. This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded. If he succeeds in doing so, then, and only then, does the burden of proof pass to the Respondent and it is for the Respondent to prove that there was no infringement of the principle of equal treatment.

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination in the following manner:

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the Director General under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent. 

The Labour Court elaborated on the interpretation of section 85A in the case of Melbury v Valpeters EDA0917 where it held that section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a covered by one of the grounds of discrimination i.e. race to render acts discriminatory. If for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a presumption of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant DEC-E2002-020 as follows: “It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i) that he is covered by the relevant discriminatory ground(s)

(ii) that he has been subjected to specific treatment and

(iii) that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Disability and reasonable accommodation

The Complainant asserts that he suffers from a disability. The Complainant’s assertion is disputed by the Respondent.

Section 6(1) of the Act provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”.

Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Act. The definition of disability in section 2(1) of the Act is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

It is well settled that for an employee to come within the protections of the of the Act, they will first have to show that they suffer from a disability. This issue was addressed by the Labour Court in the case of A Retail Company & A Worker EDA2012. In that case the Labour Court pointed out that the Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The Court pointed out that the burden of establishing this fall on the employee.

The Complainant submits that he his disability is a meniscus injury to his knee which impacts on his ability to carry out his job. The Complainant provided two medical certificates to the Respondent. Both medical certificates are from his GP. The first cert, which is dated 19 October 2023, states that “it seems that his mental health is compromised due to his work. He relates that his supervisor doesn’t respect his time off and is constantly asking him to do more and more. Vinicius feels that he can’t take it anymore, is very anxious and can’t sleep. Is always thinking about work and is all day stressed out. The second cert, which is dated 14 March 2024, states that the Complainant “is/was suffering from acute illness”.

No other medical certificates were provided in evidence by the Complainant. There is no mention in either of the certs cited above of the Complainant having a disability or of any accommodation required by the Complainant. I am of the view that these medical certificates cannot be read as an indication that the Complainant was suffering from a disability or that he needed any accommodation.

Having carefully considered the written and oral submissions in relation to this aspect of the complaint, I am satisfied that the Complainant did not establish that he had a disability within the meaning of the Act. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment.

Race

Section 6(2) of the Act defines discrimination on the grounds of race in the following manner:

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— …

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), …”

The Complainant claims that he was discriminated against during his employment with the Respondent because he is Brazilian. The Complainant has not provided any evidence to show that this alleged difference in treatment was caused by reason of his race.

Furthermore, he has not provided a valid comparator who was treated better than the Complainant was because they were of a different race. When the need for a comparator was explained to the Complainant, he nominated two Irish and one Argentinian colleague but did not provide any detail on how he was treated less favourably due to his race.

I note the Respondent’s submission that its workforce is racially diverse; includes many Brazilian staff; and that Irish staff represent a minority of the workforce.

Having carefully considered the matters raised by the Complainant, I find that the Complainant has not established primary facts to support a claim of discrimination on the grounds of race. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment.

Victimisation

Section 74(2) of the Act defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)      a complaint of discrimination made by the employee to the employer …

(f)       an employee having opposed by lawful means and act which is unlawful under this Act…….

(g)      an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that “(i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant”.

Section 74(2) of the Act is quite specific. To maintain a claim of victimisation within the meaning of the Act it is necessary that the Complainant demonstrates the connection between his actions in relation to defending his entitlements under the Act and the adverse treatment complained of.

The Complainant asserts that he was treated in a different manner to his colleagues. From the evidence put before me, it is clear that the relationship between the Complainant and his immediate supervisor, the Gym Manager, was not good. The Complainant asserts that the Gym Manager looked at him differently to the way he looked at other staff; he was not praised for good performance but was criticised for poor performance whereas other staff members were praised for simply carrying out routine tasks; his schedule was subject to constant change; and his personal training appointments were subject to excess monitoring.

Victimisation with the meaning of the Act can only occur as a reaction to the protected acts set out the section 74(2) of the Act. The Complainant has not provided any evidence to show that he took any of the protected acts set out the section 74(2) of the Act. Accordingly, I find that this element of the complaint is not well founded.

Discrimination in conditions of employment

The Complainant asserted that he was discriminated in his conditions of employment on the grounds of disability and race because of changes to his working hours.

I note the Gym Manager’s evidence that he changed the Complainant’s working hours to address his request for reasonable accommodation so that he would not have to deliver high-intensity classes. The Complainant was not happy with the change in his hours because it impacted on his family life even though it was in line with his contract.

I find, therefore, that the Complainant has not established primary facts to support a claim of discrimination on the grounds of disability or race. Accordingly, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment in this regard.

Harassment

Section 14A of the Act provides that:

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or him employment by a person who is—

(i) employed at that place or by the same employer, (ii) the victim's employer, or (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, (b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects.

For a complaint of harassment under the Act to be made out, the Complainant must demonstrate a link between the alleged treatment and the discriminatory ground.

The Complainant used the same set of facts to support this complaint and his complaint of victimisation. The Complainant asserts that he was treated in a different manner to his colleagues. From the evidence put before me, it is clear that the relationship between the Complainant and his immediate supervisor, the Gym Manager, was not good. The Complainant asserts that the Gym Manager looked at him differently to the way he looked at other staff; he was not praised for good performance but was criticised for poor performance whereas other staff members were praised for simply carrying out routine tasks; his schedule was subject to constant change; and his personal training appointments were subject to excess monitoring.

I am satisfied that the Complainant did not make any complaint of harassment on grounds of race to the Respondent and that the Respondent was not in any position to take steps to prevent or reverse the effects of any alleged harassment.

Having regard to the evidence before me, I find that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his race contrary to section 14A of the Act. 

Discrimination in other ways

In addition to his complaints of discrimination on the grounds of disability and race, harassment; victimisation; and discrimination in his conditions of employment, the Complainant submitted that he was discriminated against in other ways. The Complaint did not provide any evidence to support this complaint.

Having carefully considered the submissions of both parties, I decide that:

·       The Complainant has failed to establish a presumption of direct discrimination on the grounds of disability.

·       The Complainant has failed to establish a presumption of direct discrimination on the grounds of race.

·       The Complainant has failed to establish a presumption of harassment by the Respondent contrary to section 14A of the Act.

·       The Complainant as failed to establish a presumption of victimisation by the Respondent contrary to Section 74(2) of the Act.

·       As the Complainant failed to establish that he was covered by the disability ground, he cannot sustain a complaint that the Respondent failed to provide him with reasonable accommodation.

Accordingly, I decide that the complaint is not well founded.

Failure to establish a presumption of disability